I wonder if anyone could actually sing it in Yiddish today. Reminds me of Jewish Day in Shea Stadium when all the players are announced in Yiddish and they sing "Take Me Out To The Ballgame" in Yiddish during the 7th Inning stretch.

Thursday, April 27, 2006

CWY links to a NY Times editorial that proclaims the death penalty unconstitutional. They offer no support for that proposition, only that "the Eighth Amendment bars capital punishment completely."

The most common argument I've heard is that the interpretation of what is cruel and unusual changes with time and therefore civilized society today considers the death penalty to be cruel and unusual. In other words, the moral and constitutional issues are intertwined and the death penalty is cruel and usual because it is morally wrong, and therefore it is constitutionally prohibited vis-a-vis the 8th Amendment.

CWY argues that the Constitution explicitly recognizes the death penalty in the 5th and 14th Amendment when it makes allowances for the taking of life with due process. If the Constitution implicitly allows the taking of life, how could it be cruel and unusual?

But let's assume the meaning of cruel and unusual does not hinge on how the framers understood the term. Certainly their society did not recognize the death penalty (as a concept) to be cruel and unusual. But if we construe the clause according to modern understanding, it would be cruel and unusual. Hence the 8th Amendment should bar capital punishment.

This argument fails though. First, even if we assume that the 8th Amendment changes with time, who said the death penalty is cruel? If the law allows the death penalty, we have to assume that a substantial percentage of the population supports its implementation. Unless the people wish to see a cruel practice continue, we must conclude they do not view it as cruel. So because a few judges, or academia, consider it cruel, their moral positions are dispositive? On what basis?

In order to prove capital punishment falls under the 8th Amendment's prohibition, opponents must show a large percentage of the US considers the death penalty cruel, and as long as the death penalty is on the books that will be impossible. So it's a catch-22.

Of course they might argue that world opinion considers it cruel and we should construe the clause based on how the world views it. Even if we accept the premise that foreign viewpoints are relevant to constitutional interpretations, the argument is false. What they mean is that Europe considers it immoral. But much of the world (Africa, Asia, South America) practice the death penalty. Obviously we do not have anything close to approaching a consensus, and so opponents have to show why Europe's position should be granted more weight than Africa's on this question.

But even if we assume that the 8th Amendment, properly construed, proscribes the death penalty, the 5th and 14th Amendments still sanction its use. When we have a general rule and a specific rule, a statutory rule of construction requires us to afford the specific rule greater weight. Here the 5th and 14th Amendment by implication openly support the death penalty while the 8th Amendment prohibits it as being part of a general class of cruel punishments. The 14th Amendment therefore should be read to create an exception to the class of punishments prohibited by the 8th Amendment (although the 8th Amendment could still prohibit certain methods of capital punishment). So no matter how one interprets the "cruel and unusual clause" the death penalty still is not unconstitutional.Update: After reading my argument a friend made a good point. The 5th and 14th Amendments do not expressly allow capital punishment. They say no one shall "be deprived of life, liberty, or property, without due process of law." That merely implies that if someone was deprived of life, there must have been due process but does not expressly sanction capital punishment. It is procedural and merely requires due process if the death penalty is allowed. It basically means, "If the death penalty is allowed and it is going to be applied, then there must be due process." In other words, if the 8th Amendment forbids it, then this clause no longer operative because the death penalty cannot be carried out.

Interestingly, the 5th Amendment is written in the negative: "no state shall...." All the clauses are that way. Perhaps that's why the Due Process Clause is also in the negative, and the clause should therefore be read in its positive form.

Either way this argument only makes sense if one completely ignores the intent of the framers and original understanding of the clause. Clearly the framers intended to allow the death penalty since capital punishment was legal at the time. But the people making the argument are not Originalists, so those issues are either irrelevant or outweighed by other considerations.

Tuesday, April 25, 2006

This guy makes some of the worst arguments I've seen in a long time. Basically, he takes the Kuzari Principle as rock-solid logic and denies the existence of support for evolution. The second issue is scientific and therefore outside my realm (although I'm going to have to assume the 99.9% of scientists who support evolution are probably on to something), but the using the Kuzari's argument as a proof for the existence of G-d and the divinity of the Torah is illogical.

There is no other way to explain the existence of the universe and the origin of life other than to say that an intelligent Supreme Being created it."

No other way? I can think of an unlimited number of other ways. I came out of a nice tasty cup of Tradition vegetable flavor soup. Or maybe it was spit out of some weird space-time continuum. Or perhaps it was always there.

"How do you know that the Torah is G-d's will?

It seems logical to assume that G-d would at some point tell mankind what he wishes them to do and it seems reasonable that this revelation would have been made publicly not privately. The revelation at Mt. Sinai was obviously G-d's revelation to mankind."

Just because something seems logical does not mean it is true (and that's assuming it's logical that G-d would communicate with us). And even if that was true, who says G-d gave us the Torah?

"How do you know that the Talmud is authentic?

The vast majority of observant Jews since time immemorial have accepted the Talmud as the authentic interpretation of Jewish law. Therefore it obviously is."

Well, that settles it. Although the vast majority of Christians accept the New Testament, but hey what do they know?

2) "Proof: It is impossible to fabricate important events in a nation’s history. Too many people will object to the obvious fallacy. Therefore the events of the book of Exodus must have happened since no Jews questioned them for several thousand years."

There are numerous problems here. No one is talking about openly fabricating the stories. It's possible that historical events morphed in time from a small exodus to the event we have in the Torah. It's like playing Telephone.

Moreover who said no one ever questioned it? There were (and still are but to a less degree) huge costs to questioning the prevailing wisdom. People who did so probably were ostracized. Plus we aren't dealing with 21st Century skeptics here. People during the Middle Ages were pretty gullible.

There is so much here that I could go on forever. But I don't have time, so I won't.

I've been reading this blog for a bit, and wow, I have to admit I agree with the authors on almost everything. I might write some things differently, but I concur with the basic content.

The blog focuses on mostly the Brooklyn dating scene, which thank G-d I never participated in. Some of the problems dealt with are not applicable in the general YU scene.

For example, Know It All bemoans the lack of "In-Betweeners," the people "who learned during the day, went to college at night, weren't yeshivish, but weren't bums either. " The type of guy who learn but also watch movies. But these guys do exist in YU. While YU is becoming more and more polarized, a substantial center still remains.

This blog rips Brooklyn, which is quite easy to do and can be done in so many ways. The large number of fakers in the dating world is endemic to the society that created the world. Brooklyn is full of fakers. People who think that wearing a black hat and a gartel and not owning a TV makes someone religious. Or the type of people who spend all shul talking, haven't opened a gemara in years, but think that because their kids go to Chaim Berlin they are holier than thou. The list goes on and on.

One thing you can say for the Modern Orthodox-lite communities, at least they aren't fakers. They do what they do and aren't trying to impress anyone. In Brooklyn, much of the behavior is based on how one's children will be perceived in the shidduch market. A shidduch market that promotes "faking" is a flawed market, but that's for another post.

Note: I'm generalizing here, and there are many, many good people in Flatbush. But there are way too many fakers.

A common refrain is that Roe v. Wade, the Supreme Court decision that denied states the ability to ban early-term abortion, benefits Republicans because it allows Republican leaders to oppose abortion while knowing they won't have to actually vote to restrict it.

Ramesh Ponnuru argued recently that the conventional wisdom is wrong. In fact, repealing Roe would harm the Democrats as much as the Republicans because it would require them to choose between placating their hard-left base, which supports little to no restrictions on abortion, or majority of the country, which is in favor of numerous limitations.

Ponnuru also makes a good point about how overturning Roe would probably effectively take the abortion question out of hands of the federal government. A national solution would be a bad idea and would not get support from enough senators to pass.

Let's say Roe is struck down tomorrow. Congress could then impose a compromise solution. Who would support a compromise though? Senators in solid blue or red states have constituents that usually have strong opinions on abortion one way or the other. If, for example, Charles Schumer decided to support a bill that protected abortions in the first trimester but only allowed them in subsequent trimesters in cases or rape, incest, or to protect the mother's health, his political standing in NY would be harmed because most New Yorkers want more liberal laws. Same problem for John Thune of South Dakota, home of the most draconian abortion laws.

So Senators in red or blue states are unlikely to support a national compromise. That leaves only the members of the swing states who might support a national compromise solution. But are there enough senators from swing states to make that happen? Unlikely. Moreover, even if there were, abortion is a single (although politically charged) issue. Rick Santorum is ardently pro-life, but he's been a senator for 12 years (a reign that might end this September) in Pennsylvania, a swing state. Although the center can now vote for him because of Roe and know he won't be able to ban abortion (an option that won't exist if Roe is struck down), it's unlikely that the abortion question will cause a great shift in swing states of voting against pro-life candidates.

The one group that might accept a compromise are those Senators with designs on the White House. They need to move to the center in order to win. But first of all, how many Senators are running for President? I do not believe they, plus swing state Senators, could garner enough votes to pass abortion legislation. But an even bigger problem is that Senators know they have to win their primary first, where extremist voters hold all the power. A national solution that is unfavorable will make winning the primary difficult, and should serve as a disincentive for Senators voting for a compromise.

The reality is that the federal government will be unable to solve the abortion question and it will be properly decided by the states. If abortion is removed from the table, a repeal of Roe will have little effect on federal politics and will not hurt or help either party nationally.

But will it affect state legislatures by causing pro-choice voters to vote Democrat? It might cause a few states to turn blue, but the change will be minimal. Again, most states are either red or blue and will be unaffected (in fact those states will probably become more solidly red or blue because people might feel like the state can actually get something done in abortion realm). It might change in the swing states, but most legislators in the swing states are probably not strongly pro-life or pro-choice anyway, because they represent a subsection of the population. At worst we'll see less extremists in swing states and more moderate Republicans or Democrats. Not a major shift, and certainly not the end of the world.

Personally I'd take a return to a sensible jurisprudence in exchange for losing a few seats in state legislatures any day.

"Vales gave interrogators three reasons for the abuse: the baby's ceaseless crying, anger at his wife for working nights at a clothing store and disgust at his son's congenital muscular torticollis, a deformity of the neck.

Vales detailed the abuse in a written police statement made public Monday on Channel 10 news. He admitted to bashing the baby against the wall, punching and slapping him, pinching his neck and chest, and biting him on the neck.

Vales said he began abusing the baby about two weeks before the final incident. He denied any abuse of his wife, but admitted that he slapped her occasionally."

Slapping his wife is not abuse? Well at least he admitted baby biting is abuse.

This is the guy the Charedi world is fighting so hard to keep out of prison? Don't they have better things to do?

Monday, April 24, 2006

We've (I mean law students) have all heard the common refrain that to get good grades we need to learn what the professor wants us to know instead of the material. Obviously, if true, that places a deterrent on learning, since what the teacher wants to hear might not be the correct understanding of the material.

LeiterReports quotes Pamela Karlan, a professor at Stanford, who bemoans the high 75th percentile GPAs in the top 20 law schools. She argues that focusing on high GPAs could promote coasting, since students are more likely to take easy courses that get them a high GPA rather than take hard classes and risk the mediocre grade.

A benefit of our undergraduate system is its focus on making students well-rounded. Every school has a list of requirements that encompass varied fields of study, and every student is expected to at least be exposed to all those fields. Focusing on high GPAs makes students less likely to take difficult courses, especially if their major is something relatively easy like political science or, in my school, information systems.

Law school therefore affects how students go through college and undermines our entire legal system. Stupid lawyers.

Sunday, April 23, 2006

An Israeli court today ruled that the Palestinian Authority areas are a sovereign state and therefore not bound by Israeli law. The Court based its ruling on international law, which sets up requirements for an entity to become a state. The PA fulfilled those conditions and are therefore a state.

I don't really understand how a court could just declare another entity a state in the absence of legislation to that effect, especially when the legislature does not recognize the PA as a state. While I'm not taking sides in the old argument about whether state recognition is declarative or constitutive, it's seems odd that a court in one state could disagree with the legislature's determination of the existence of a foreign state. Despite Israeli agreements with the PA, the WB is still considered territory under the control of the IDF, and therefore not a sovereign state under Israeli law. So basically the Court just ignored that legislative determination and decided that international law wins. Even if we assume that international law applies in Israeli courts how international law could override Israeli law in the absence of provisions that decide a hierarchy of laws is beyond me. Just another example of hyperactivism on the part of the Israeli judiciary.

For years there has been an argument about whether Israel should risk its soldiers to protect the lives of Palestinian civilians. The age-old question was best highlighted during Operation Defensive Shield, when 13 soldiers were killed because the IDF did not want to risk civilian lives by using bombing the refugee camp. In fact, Israel could have likely protected all of its soldiers by bombing from the air, rather than embarking on a house-to-house campaign.

Moreover, assuming a country should risk it soldiers to protect enemy civilians, what constitutes a civilian? Is a civilian someone who stays out of the fighting, or someone who doesn't participate in the war effort in any way? Or maybe only someone who in no way benefits the army? The latter definition would deny the existence of civilians because anyone who is part of a country participates in the economy and therefore is helps the warring country.

I would support the broadest definition possible, which, assuming there's a duty to protect civilians, would lead to the greatest amount of protection for the greatest number of people. I support that definition for the same reason I believe there is a duty for soldiers to risk their lives to protect enemy civilians: because it minimizes the loss of life in war.

Eyal Benvenisti argues that civilians have a right to life and cannot be killed with impunity. However there is no universal obligation to protect that right. Therefore the requirement for combatants to spare enemy civilians is rooted in reciprocity agreements that expect both countries to leave civilians off-limits. In essence, Benvenisti posits an implicit agreement between the warring parties to keep civilians out of the fighting.

This is the essence of the current dichotomy between combatant and civilian. Combating parties agree to not harm civilians in exchange for protecting their civilians. This agreement is actually multilateral in that all countries and groups agree and that creates a binding obligation on all the parties.

Obviously not all countries will abide by the agreement. For example, if Israel was at war with Syria, it seems unlikely that Syria would be as careful about protecting civilians as the IDF. But this agreement has shifted what's acceptable to the more humane. Fifty years ago, bombing civilians was allowed even by democratic countries. Today, countries are much more wary about attacking civilians. The agreement has made it more difficult for a country like Syria to bomb indiscriminately (although there are other reasons why countries might abide by international law).

Breaking the agreement would legitimize attacking civilians. If Israel decided to indiscriminately bomb Jenin, it would make intentionally killing civilians more acceptable. While terrorist groups continue to murder civilians as their primary goal, the world (although not all countries) views such tactics with disdain. The less acceptable a tactic is, the less support a group will have for using it.

Take Hamas as an example. After the recent terrorist attack Denmark (Denmark!) cut off aid to the PA. It might be acceptable to support terrorism indirectly, or not combat it, but it is no longer acceptable for a group to use it. That is an important shift in the right direction.

So, in some cases, risking soldiers will benefit civilians. And since the purpose of soldiers is to protect civilians, perhaps the risks are justified.

Tuesday, April 18, 2006

Hamas defended yesterday's suicide bombing as a legitimate response to occupation. From Haaretz:

The comments from Interior Minister Saeed Seyam were the first from a cabinet-level Hamas official member in response to the attack.

"We are not a great power who can confront the planes and the missiles of the occupation, but our people have the will and the right to defend themselves and to confront as much as they can the arrogances of the occupation," Seyam told reporters.

Denmark and Japan responded by cutting off aid money because the response was unacceptable. I guess they expected Hamas to continue the Arafat tradition of condemning the attacks as harmful to Palestinian interests (which of course implies that if they were in their best interests, the attacks would be legitimate). So Denmark is upset that Hamas actually told the truth instead of lying like Fatah.

So in essence Hamas is getting punished for not lying. It took years for the EU to brand them a terrorist organization, but tell the truth and get a reprimand.

I'm glad some European countries are finally starting to take this situation seriously, but their reasons are ridiculous.

Monday, April 17, 2006

Larry Solum has a post on strict constructionism and judicial activism and he tries to define the terms. Basically he concludes that the terms are meaningless since no uniform definition can be applied that is helpful.

Interestingly, he distinguishes between textualism and "literalism" with the former meaning that a decision must be rooted in the text and the latter being construing the plain meaning of the text. I always understood textualism as interpreting the text according to its best meaning, which implies interpreting it based on its meaning at the time it was written (which is why textualism and originalism go hand in hand). My understanding is rooted in the idea that words can only have meaning if based on their objective, socially constructed definitions and those definitions only exist at the time the law was written.

I'll probably expand this argument in a later originalism post one day.

A suicide bombing kills seven and wounds dozens in Tel Aviv. The party in power of the PA disclaims responsiblity, while arguing for its legitimacy. The head of the PA denounces the attack which "harms Palestinian interests." An Israeli prime minister claims Israel knows how to respond and will.

Haven't we seen this before, over and over again? When Hamas was in the opposition, Fatah used to condemn the attacks, but claim no responsibility because the attack would then be an act of war by the leader of the Palestinian people. Now that Hamas is in charge, Islamic Jihad and Fatah have decided to take over.

So that's how the game is played. The three terrorist organizations just switch off leadership and terrorist roles. If Fatah is in charge, Hamas and Islamic Jihad carry out the attacks. If Hamas is in charge, Fatah and Hamas launch the suicide bombings. So I guess if Islamic Jihad wins the next elections, we'd expect the them to deny responsibility for Hamas and Fatah terrorism.

Is anyone going to be surprised when the inevitable "call for calm" from the EU comes after Israel retaliates?

Sunday, April 16, 2006

Extremism always seems to be of a worse variety in the Holy Land. Witness the riots going on in Meah She'arim over the arrest of a man arrested for beating his son to death. Since he lives in Me'ah She'arim, the arrest must be a Zionist plot to make "Torah-true" Jews look bad.

"Friday's demonstrations took place near Kikar Hashabbat and Yehezkel Street. Demonstrators threw rocks at passing cars and turned over or set on fire about 30 Dumpsters. Rocks were thrown at firefighters and a municipal waste disposal crew sent to the site, and one city worker was slightly injured."

Who throws rocks at firemen? Obviously these lunatics are not representative of the community as a whole, but people rein in your animals please.

Update: Wow, this gets even worse. The guy admitted to severe child abuse:

"Vales admitted he slammed the baby against a wall and had previously attacked him numerous times, because he "wouldn't let him sleep." He said he would beat his son with his fists, slap him and bite him on the neck. "

Nevertheless, the community still believes he's innocent and sources say that during a planned protest "Jerusalem would burn." Thank G-d saner minds prevailed and the protest was called off.

Saturday, April 15, 2006

[Jewish scholars asserted that a Court of Law] that kills [i.e., convicts on a capital crime] once a week is called "destructive." [But a scholar then glossed:] "Once in seventy years." [Two other even more luminary scholars objected], "If we had been on the [Court], there would never have been a person killed." [But] R. Shimeon ben Gamaliel [replied], "They would have increased the number of spillers of blood in Israel."

Apparently, someone did believe that the death penalty was a deterrent. Take that DovBear!

Wednesday, April 12, 2006

I'm in Lakewood, I'm tired and hungry and have nothing to blog about but thanks to Romach here's one more post before Yom Tov!

Accent: How would I know? Ask someone who knows me.

Booze: I'm not much of a drinker.

Chore I hate: You name it, I hate it.

Dogs/Cats: Cats win, but not by much.

Essential Electronics: My laptop is pretty much the only electronic I need. My alarm clock is essentially useless.

Favorite Perfume/Cologne: Ha Ha.

Gold and Silver: I wish.

Hometown: I have a few choices here. Flatbush (an annoying subsection of Brooklyn) is where I grew up but my parents got out thanks to a large donation from a builder who decided he wanted our house. So my family no longer lives there. Now they live in Lakewood (a less annoying section of New Jersey), but I don't. I have an apartment in the East Village (a really strange subsection of Manhattan), although I can't call that my hometown.

Insomnia: I can fall asleep anywhere in a matter of seconds. So no.

Job Title: I hope before the summer starts I'll have something to fill in here.

Kids: I love em.

Living Arrangements: For the next two and a half months, I have a roommate. Then he'll move out and I'll get a wife. Yay!

Most Admired Trait: Shifra says my kindness.

Number of Sexual Partners: None.

Overnight Hospital Stays: None as of this point.

Phobia: I'm afraid of my shadow. No wait, that's Gitty.

Quote: Nothing comes to mind.

Religion: Judaism

Siblings: One older sister

Time I usually wake up: Let's move on.

Unusual Talent: Sleeping anywhere.

Vegetable I Refuse to Eat: I'll eat anything.

Worst Habit: Spending money at ESPN Zone.

X-Rays: Once or twice I think.

Yummy Foods: I like almost anything but especially cholent, steak, kugel, pasta, and I'm beginning to develop a taste for shwarma.

Tuesday, April 11, 2006

"Women are very attuned to the unseen audience... A man can sit in, watching television with newspapers scattered everywhere and food all over, and they just don't care. They can do it later. We women have the sense that someone's watching us. We need those newspapers picked up because what would people think?"

Over at Feminist Law Professors, Bridget Crawford recalls a conversation about whether someone can be a feminist and pro-life. Some people argued that it's possible that one could recognize the difficult decision involved and respect other women's right to make the decision, but never have an abortion themselves. Others argued it's impossible because pro-life by definition seeks to deny women the right to choose to have an abortion.

What I don't get is why feminism requires adherence to the view that abortion should be legal. My understanding of feminism (as the term is used broadly) is that it seeks to obtain for women equal legal and civil rights and an equal place in society. Why can't such an admirable stance be congruous with the idea that a women's right to control her body is outweighed by the right of the fetus?

Suppose someone believes life begins at conception. And suppose she is a feminist and therefore believes a women has a right to control her own body (I'm not even sure why those two concepts have to be linked). Why can't she believe that the fetuses right to live is trumped by the women's right to abort?

Eugene Volokh has an interesting post about the claim that illegal immigration is useful to our economy because immigrants are willing to do jobs that Americans won't do. Professor Volokh argues that in reality Americans won't do the jobs for the same wages that illegal immigrants are willing to work for, but if the illegal immigrants were not in the picture either the wages would increase and Americans would take the job or the jobs would cease to be economically feasible. So practically the claim should be:

"Illegal immigrants just do the jobs Americans won't do for the same low wages that illegal immigrants will take, and it helps our economy to have the jobs done at those low wages."

Here's something I don't get about the above claim. People who argue that illegal immigrants are necessary for our economy are implicitly recognizing the benefits of having people work for low wages, wages that are lower than the minimum wage. So what these advocates are arguing for is:

"We need illegal immigrants because they'll work for wages below minimum wage and that drives down prices, which is good for the economy."

Yet these same people strongly advocate a minimum wage for Americans. So it seems to be OK for poor Mexicans to work for low wages, in bad conditions, and receive no benefits, but claim that Walmart workers shouldn't receive full health care benefits, and they get all upset. Is that racism at work?

Monday, April 10, 2006

Over Shabbos we had a conversation at the table about deciding "who's the one." One person remarked that pretty much any two people can get married as long as they work on the marriage. Another friend on mine made a similar comment to me years ago, in which he noted that everyone can make their marriage work as long as they put in the effort.

An interesting blog has a good response to this argument. He argues that the statement is basically true, "[b]ut there's a good chance that such a marriage will be a '74 Ford Pinto [instead of an '06 Lexus]." In other words people could make it work, but the quality of the marriage would be poor.

I actually disagree. I don't think most people can marry. There are so many factors involved in choosing a spouse that we're almost lucky when we find the right one. These include (in no particular order): Hashkafa, personality, looks, family, intelligence, interests and responsibility.

Now people usually trade some of these factors for others. Certainly most individuals could have a good or even decent marriage with someone who is not their intellectual equal or doesn't care much for sports. But both parties must have a similar hashkafa or there will be many problems down the road (especially with regard to raising children).

Personality is extremely important. While most people could get along with a fairly wide range of personalities, his/her spouse must fall within that range. I've met many nice, intelligent, pretty girls but I could never marry them for personality reasons. For example, a girl might be very emotional, or be easily stressed out, or even very organized. All of these traits are favorable traits (I really mean that), but I'd go crazy within a week.

Another problem is that not everyone is willing to work things out. There's working thing out, and then there's working things out. If a couple has a disagreement, they could come to a resolution after hours of fighting or because one party doesn't want to fight and is always willing to give in. That creates the veneer of a happy marriage, but that's not compromising. It's coming to a truce.

Really working things out means both parties, calmly and rationally, evaluate the other's argument and decide on the most rational plan of action. Personally I could not marry a girl who refused to listen to my arguments and just fought. I would go crazy.

So basically compromising is important, but certain traits are red lines and if crossed, will likely lead to divorce or very unhappy marriages. People must draw a line between picky and sensible.

I got lucky and didn't have to draw a line. I got everything I wanted and more. I'm giving all my readers a bracha that they should be as lucky.

Update: I read the response. In classic Dershowitz form it was well-argued but over the top. He does an excellent job of showing that most of their arguments are parroted from neo-nazi and anti-Israel websites, that their "facts" are in many cases not facts at all, and that their scholarship is so shoddy that it's hard to believe it comes from two well-respected academics.

I'm not sure I agree that their work is reminiscent of The Protocols, even though they seem to harp constantly on "Jewish power." As Professor Bernstein correctly pointed out, it's arrogance that drives them. They are so sure that working with Israel is not in our best interests that they have to concoct ridicilous theories about super-strong lobbies in order to rationally explain why the US would undertake such policies. It's beyond reason in their eyes that reasonable people might disagree with them. Typical of academics I might say.

Sunday, April 09, 2006

In a review in Commentary Magazine of Betty Friedan's The Feminine Mystique, Dan Seligman analyzes two important claims made about Friedan and feminism: that The Feminine Mystique is one of the great books of our time and that it helped improve the lives of countless American women.

I'm not going to get involved in the debate whether the Friedan or feminism was a fundamental element in the societal changes that allowed women to become more active in the workforce (he claims that the increase in educated women during that era led to a huge increase of supply that would have increased demand accordingly even without feminism, a claim of which I'm skeptical). I'd rather focus on a point he makes at the end of his essay:

"Abortion, equal pay, equal opportunity in college sports, no “Men Wanted” ads in the papers, no mistletoe at office Christmas parties—virtually all the demands have been met... Once the economic victories had been won, and it became increasingly difficult to find new issues with broad-based appeal, a case could be made that the movement’s best bet was to settle for a niche market."

In other words feminism has ran its course for most American women. What are the biggest issues on the feminist agenda? The NOW website lists six top priority issues:

1) Abortion Rights/Reproductive Issues

The abortion battle is a long one, but one that would have died years ago if not for Roe. Majority of the country supports abortion in the first trimester and that doesn't look like it'll change. NOW's support for partial birth abortion and its opposition to any restrictions place it on the margins, even among American women.

2) Violence Against Women

The domestic abuse is a dead letter. Who supports domestic violence? Congress, close to a decade ago passed the Violence Against Women Act which was struck down on federalism grounds (it's been reauthorized). As far as I know, every state has laws against domestic violence. So the fight is merely about the extent of the punitive measures against abusers. So NOW is making a huge deal out of whether a prison sentence should be five years or ten years. That's a fundamental issue?

3) Constitutional Equality

This issue goes back to the days of the Equal Rights Amendment that never got enough states for ratification. The problem is that laws that discriminate against women as a class are not reviewed under the same scrutiny as laws discriminate on the basis of race or religion.

But there are obvious reasons for that: people who are discriminated against because of their race or religion are usually minorities. Women are not a minority, either in the population or among voters. So why do we need special constitutional protections for women?

4) Promoting Diversity/Ending Racism

This is a nice issue to fight for, but how it is a women's issue? Certainly women are affected by racism, but if NOW didn't exist, would groups like the NAACP be less effective?

5) Lesbian Rights

Also an important issue according to some, but not an issue that faces all women (or even the vast majority).

6) Economic Justice

NOW argues "[a] full-time working woman currently receives only 73 cents to every dollar received by a man."

I've never bought the wage gap argument for one simple reason: in our ever litigious society it's hard to fathom a group receiving a quarter less on each dollar for the same work as someone else solely on the basis of gender. There would be class actions all over the place, as such discrimination is clearly illegal under Title VI. Where are all the lawsuits? I'm not saying there aren't any, but we should be bombarded with suits all the time.

What the statistic probably means is that in the aggregate a full time working woman currently receives only 73 cents to every dollar received by a man. And of course there are many possible explanations for that that have nothing to do with latent discrimination: women, in general, being less educated 20 years ago means less women in high ranking and therefore high paying positions, women leaving the workforce for years to care for their children and coming back with less experience than their male counterparts, women taking less arduous, and therefore lower paying, jobs in order to care for their children, etc.

I could understand wage disparities being an issue if one feels men and women should equally share the domestic burdens (personally I see many situations where they should). But NOW completely blows it out of proportion.

So of the six issues, only one really affects the average woman and really matters. And that explains why feminism is in a decline. As Seligman accurately points out:

"Nobody today cares much what NOW says or does. It could not conceivably produce 100,000 women to march down New York’s Fifth Avenue, as it did in its glory days in the early 1970’s. Its flagship magazine, Ms., which once had a circulation of 300,000, still exists as a quarterly, but you will have trouble finding it on newsstands."

Note: I understand this post is simplistic, and I am conflating all types of feminism into one (aptly called) radical feminism. But that's the type of feminism that is in the public eye most often, so I'm focusing on it.

Bill Simmons, The Sports Guy, recent column on the Clippers made a very interesting point. His article focuses on how the Clippers, the greatest laughingstock in sports, managed to make the playoffs. One important difference is the improvement of Elton Brand, who for years was a consistent 20 points, 10 rebounds, 2 blocks guy. This year he took his game to a whole new level. In fact "[h]e's better than every power forward in the league except Duncan and Nowitzki."

That got me thinking. For years Dirk and Brand have pretty much been on the same level especially since Brand actually plays some defense. But Brand made a huge jump this year and this year his numbers might actually be better. And while Nowitzki has improved, is he still as good as Brand?

I took a look at the Dallas roster. And then I realized it: The Mavericks are really the Knicks-west! Let's compare:

Take the top two players off the teams (Dirk and Marbury) and see what's left.

1) Both teams lack a true point guard and have two shoot first point guards (Terry/Harris for the Mavs, Francis/Robinson for the Knicks).

2) Both have two underachieving centers (Curry/James for the Knicks, Dampier/Diop for the Mavs).

3) Both have a soft big man who can't play defense but can shoot (Van Horn for the Mavs, Frye for the Knicks).

4) Both have swingmen who can't do anything but slash (Stackhouse/Daniels for the Mavs, Richardson/Rose for the Knicks).

5) Both lack shot blocking, rebounding, and toughness out of their big men (Diop is the only decent shot blocker on either team and he usually only plays about 2 minutes before he fouls out).

One key difference is Josh Howard, who is a solid young player. And the Mavs were a slightly better constructed product.

But look at the difference. The Knicks have the third worst record in the league, and the Mavs are competing for the best record in the West (which is a far superior conference). It's not all Avery Johnson; Nowitzki brings a lot more to the table than people think.

Can anyone name five better players in the league right now? I don't think so. We have Kobe, Duncan, and Nash as givens and maybe Lebron and Wade. That's it, at best. Nowitzki has really come alive.

Friday, April 07, 2006

"On Friday, a high school teacher announces to his class that there will be a surprise quiz some time during the next week. "By surprise," he states, "I mean that, the night before the quiz, you will not be able to deduce that the quiz will be the next day." A clever student raises his hand and says, "Well, the exam definitely cannot be on Friday because on Thursday night, we would be 100% certain that the exam would be the next day. But then, the exam cannot be on Thursday either because, knowing that it cannot be on Friday, on Wednesday night we could deduce that the exam must be on Thursday. By similar reasoning, it is impossible to give the exam on Wednesday, Tuesday, or Monday. Therefore, your claim that you will give a surprise quiz next week is clearly false."

"The next week, the teacher administers a quiz on Tuesday, much to the surprise of all the students. "

Mary Ellen O'Connell, in the latest issue of ILSA Journal of International & Comparative Law, argues that the war on terror does not comport with the understood definition of war in international law. She argues for a narrow definition of war and claims war should only exist "when compelled by the facts: facts of real fighting and situations of real emergency where normal peacetime law and protections cannot operate." The war on terror is too sporadic to fall within this definition.

Moreover, she claims granting Al Queda combatant status is detrimental to US interests by elevating them to equals with the US. Al Queda's prestige shot through the roof and that's a strong recruiting tool.

O'Connell's main criticism is that the administration wants this be a war so it can use execution without warning and detention without trial. Bingo. Of course that's why it does it.

The standard legal definitions do not lend themselves to modern factual situations. A terrorist war, launched by thugs who could obtain nuclear weapons, was not something envisioned by Grotius. And while the laws morph over time, they do so very slowly, way too slowly to allow countries to do what they have to do.

This is precisely why international law is of little utility during war. A country will serve its best interests in any wartime situations, only constrained by practical elements. The law is far in the back of its mind, and is only dredged up as support for a policy.

Policy arguments are the only way to persuade a country to take a preferred path, not vague statements about the "law."

Thursday, April 06, 2006

Over at Balkinization, Brian Tamanaha reprints the American Society of International Law's recent resolution about international law and the Iraq war. Tamanaha is correctly that the resolution merely restates what everyone knows about international law, so he believe ASIL is just making a statement about the Bush administration's conduct in starting and conducting the war.

Now of course almost no one disagrees that international "law" governs the use of force and that torture or even cruel, inhuman, or degrading treatment is a violation of international law. It's also quite possible that the Bush administration has violated international law. But the administration's response to such charges is not that international law is irrelevant, but that its conduct does not fall outside the bounds of the law.

For example, the administration does not deny that the Geneva Conventions governs "[c]onduct of armed conflict and occupation." It argues that these conventions do not apply to prisoners who do qualify for its protection according to the explicit requirements laid out by the conventions themselves.

It also does not deny that "Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum)." Rather it argues that the myriad binding Security Council resolutions against Iraq justify the use of force to enforce them under Article 43.

Perhaps groups that criticize the administration would do better if they actually explained what they thought the administration did wrong, rather than pretending it's obvious (or as Dovbear would say "everyone knows [they broke the law]")

Disclaimer: This post contains terms that will not be understandable to someone without at least basic familiarity of Jewish legal concepts.

Check this out. Could someone sell his chametz on Ebay? I wonder if it's possible for this transfer to occur halachically without the benefit of a third party. Despite my limited understanding of kinyanim in general, I would think the transfer could be effected through a shliach (or agent) or through zachin l'adam shelo befanuv.

But could the transfer occur via an electronic medium? Normally chametz is sold through chalipin. Obviously that cannot take place electronically. The only instance I am aware of where something can be transferred without any physical action taken by either party is meimud shlashtun, but that's an assignment of a debt.

Wednesday, April 05, 2006

Last night, on the advice of someone I care about, I rented Saw II. For those of you who don't know the basic storyline, it's about a sicko, called Jigsaw, who traps people and forces them to do something horrible in order to survive. Most of the time they aren't willing to do it, and well, they die (in a pretty gruesome way usually).

The underlying theme of Jigsaw's murders is that he targets people who don't value their life or the life of someone close to them. In the first movie he went after a doctor who was cheating on his wife. Here he kidnapped a cop's son. In both cases his target obviously cared about his family, but only showed it when they were in danger.

The lesson, explicitly made in the movie, is that people only care about life when they realize it's in danger. This concept is endlessly related to us around Elul time. Maybe Yeshivas need to start showing Saw to get their point across....

The blogesphere is all ablaze with the news of rioting in Boro Park last night. This is a good time to dredge up an old post of mine about rioting and the proper responses to rioting.

Basically I proposed giving the Mayor or a high judicial officer the ability to designate a situation a "riot," thereby giving the police the ability to use lethal force to end it. Read the post for a better explaination.

By the way, I am NOT suggesting people should have been shot in this case. This was a minor riot as riots go. But it just serves as another example that cops need better tools to deal with rioting.

A University of Haifa study recently found that the more religious a girl is, the less likely it is she'll suffer from eating disorders. The reason:

"The researchers' main explanation for this finding was that Western culture glorified thinness as an important value representing beauty and an expression of self-control, independence and high social status. But religious Jewish society directs girls from a young age to succeed in their tasks of being wives and mothers and puts much stress on their functioning inside the house and less stress on their appearance and what they do outside the home. "Sex roles are much more defined, and this constitutes a type of protection for the teenage girl and prevents her from being dissatisfied with her body and, developing eating disorders," said Letzer."

So the choice pretty much is brainwashing girls to think that being wives and mothers is the only path they can take (besides maybe a menial job with no room for growth) or having them starve themselves sick.

Great, just great.

Note: I have nothing against women who want to be wives and mothers, but I'm against educational brainwashing that teaches girls that all they can do is be housewives. Women who choose to be housewives have my complete respect since their job is just as hard, or maybe harder, than mine will be.

Monday, April 03, 2006

I haven’t posted much about Same-Sex Marriage (SSM) in the last year or so, but an interesting post by Dale Carpenter caught my eye. He responds to the standard slippery slope argument against SSM, that recognizing SSM will require the government to recognize polygamy because no principled distinction between the two can be drawn. His counterargument is that allowing SSM will require only minor changes to the existing marriage codes, but legalizing polygamy will require a complete overhaul of existing laws. Changing those laws imposes a significant cost than SSM does not generate. As Gabriel of Galios once put it, SSM only requires changing who can play the game, but polygamy requires changing the rules of the game itself.

The analogy is not completely accurate. Many of our family and custody laws are based on common law theories that assumed specific gender roles for the parties. For example, custody laws often favor women, who are assumed to be better parents. Also, divorce laws require maintenance and child support are underpinned by the idea that women would stay at home with the children and need to be supported to do so (although this scheme has been partly changed to allow more equality). SSM would certainly require redoing some laws (or at least the assumptions behind them), and that would be a cost as well.

Nevertheless Carpenter’s argument is basically correct. But that doesn’t mean his counterargument completely deflects the polygamy/SSM analogy. Legalizing any new form of marriage would require a weighing of distinct benefits and costs that apply only to that form of marriage. For example incest might not require as an extreme overhaul of marriage laws (although it would certainly affect inheritance laws), but would generate other costs (e.g., the fear of forced marriages, deformities in offspring, etc.).

The argument that Carpenter is responding to is not (or shouldn’t be) that polygamy and SSM are exactly the same and if we recognize one, we must recognize the other. The argument is that once society begins to change the fundamental definition of marriage in one case, it is required to review other forms of marriage and embark on a cost-benefit analysis for the other forms. It cannot just deflect arguments to change marriage by saying “that’s how our society understands marriage.” Legalizing SSM certainly weakens the arguments against polygamy and that’s a cost to legalizing SSM. While the benefits of legalizing SSM might still outweigh the costs, SSM advocates must recognize the costs to their proposal.

I watched The Interpreter this past weekend. It’s a solid movie, with a decent twist at the end. I kind of liked the storyline and acting, but overall the movie did not do enough to keep me caring. Oh well.

But there were some blatant inaccuracies that only someone as pedantic as myself would notice (or care about). The movie revolves around a (possible) assassination attempt on the leader of made-up country called Matobo named Edmond Zuwanie, who committed crimes against humanity and genocide. Zuwanie would like to come to speak before the United Nations General Assembly in order to convince the UN not to arrest him and try him before the International Criminal Court.

OK, here are some problems with this movie:

1) There is a scene where the US ambassador is speaking with the ambassador from Matobo and notes how the US will push for the leader’s arrest and trial before the ICC. One small problem: The US has not ratified the Rome Statute creating the ICC (in fact President Bush removed the US signature). The US has also worked to undermine the ICC. It seems highly implausible that the US would push to have anyone tried before a court it wishes to see go away.

2) There’s a scene where the French ambassador is calling for his trial before the ICC. Yeah, right, the French calling for force to arrest a leader and try him before the ICC? Don’t make me laugh.

3) SPOILER!!!!!!!

At the end the Security Council unanimously votes to try Zuwanie before the ICC. Can anyone really imagine a country like the Congo voting in favor of trying someone for war crimes (well, unless Israel was involved)? Come on.

Stuff like this has bothered me even since in Hart's War Bruce Willis told the head of the Nazi POW camp that summary executions violate the Geneva Conventions. The Geneva Conventions did not exist during WWII (they were signed in 1949).